Registrar-General of New South Wales v LawCover Insurance Pty Ltd [2014] NSWCA 241

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Registrar-General of New South Wales v LawCover Insurance Pty Ltd [2014] NSWCA 241 Hearing dates: 24 June 2014 Decision date: 25 July 2014 Before: Bathurst CJ at [1]; Basten JA at [2]; Meagher JA at [17] Decision: (1) Grant leave to appeal. (2) Direct that the Notice of Appeal filed and served on 6 November 2013 stand as the notice of appeal and dispense with any requirement that the applicant/appellant file and serve a further notice of appeal. (3) Appeal dismissed. (4) Applicant/appellant pay the respondent's costs of the application for leave to appeal and of the appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: REAL PROPERTY - Torrens Assurance Fund - Registrar-General sought leave to enforce charge said to arise under Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 6, on insurance moneys payable by insurer of solicitor whose conduct contributed to loss which was the subject of claim on Fund - nature of Registrar-General's right of subrogation under Real Property Act 1900 (NSW), s 133(2) - Registrar-General entitled to advantage of every right of claimant on Fund against any person in relation to claimant's "compensable loss" - claimant had no right of action against insurer under s 6(4) because "happening of the event giving rise to claim for damages or compensation" pre-dated making of relevant contract of insurance - accordingly no right to enforce statutory charge to which Registrar-General could be subrogated Legislation Cited: Civil Liability Act 2002 (NSW), Part 4 Interpretation Act 1987 (NSW), ss 34, 35 Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 6 Legal Practitioners Act 1898 (NSW), s 61 Legal Profession Act 1987 (NSW), s 90A Legal Profession Act 2004 (NSW), s 448 Professional Standards Act 1994 (NSW) Property, Stock and Business Agents Act 2002 (NSW), s 177 Real Property (Compensation) Amendment Act 1992 (NSW), s 3 Real Property Act 1900 (NSW), ss 128, 129, 129A, 132, 133, 133A Real Property Amendment (Compensation) Act 2000 (NSW) Real Property and Conveyancing Legislation Amendment Act 2009 (NSW) Statute Law (Miscellaneous Provisions) Act 2002 (NSW) Supreme Court Act 1970 (NSW), s 101 Travel Agents Act 1986 (NSW), s 40 Cases Cited: Bailey v NSW Medical Defence Union Ltd [1995] HCA 28; 184 CLR 399 Castellain v Preston (1883) 11 QBD 380 Chubb Insurance Company of Australia Ltd v Moore [2013] NSWCA 212; 302 ALR 101 Energize Fitness Pty Ltd v Vero Insurance Ltd [2012] NSWCA 213 Esso Petroleum Ltd v Hall Russell & Co [1989] 1 AC 643 Gill v The Registrar-General (Supreme Court of New South Wales, Young J, 4 December 1991, unrep) Law Society of New South Wales v Bruce (1996) 40 NSWLR 77 Pedulla v Panetta [2011] NSWSC 1386 Registrar-General (NSW) v Behn [1981] HCA 36; 148 CLR 562 Registrar-General v Gill [1994] NSWCA 261 Simpson & Co v Thomson (1877) 3 App Cas 279 Sydney Turf Club v Crowley [1971] 1 NSWLR 724 The Owners - Strata Plan 50530 v Walter Construction Group Ltd (in liq) [2007] NSWCA 124; 14 ANZ Ins Cas 61-734 Theresa Nadia Pedulla v Fernando Rene Panetta & Ors [2011] NSWSC 1386 Texts Cited: Mitchell and Watterson, Subrogation Law and Practice (Oxford University Press 2007) Category: Principal judgment Parties: Registrar-General of New South Wales (Appellant) LawCover Insurance Pty Ltd (Respondent) Representation: Counsel: GA Sirtes SC, H Altan (Appellant) SR Donaldson SC, PA Horvath (Respondent) Solicitors: Land & Property Information Legal Services (Appellant) DLA Piper Australia (Respondent) File Number(s): 2013/335136 Decision under appeal Jurisdiction: 9111 Citation: Registrar-General of New South Wales v LawCover [2013] NSWSC 1471 Date of Decision: 2013-10-09 00:00:00 Before: Harrison J File Number(s): 2012/384918